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Balchand v Minister for Justice

Applicant/Plaintiff: Balchand
Respondent/Defendant: Minister for Justice
Citation/s: [2016] IECA 383
Nature of Proceedings:Appeal
Court/s:Other
Court of Appeal
Judgment Date/s: 15 December 2016
Judge: Finlay Geoghegan J.
Category:Residence
Keywords:Immigration; Regularisation; Residence Permit; Student; Immigration law; Variation of immigration status
Country of Origin: Mauritius
URL: http://www.courts.ie/Judgments.nsf/0/0A1028D3E3D8568A8025808B0038BD6A
Geographical Focus:Other

Facts:

The first named applicant was a Mauritian national who arrived in the State on the 7 December 2006 and was granted an immigration permission on student conditions (generally referred to as “stamp 2” conditions or permission). He married the second named applicant, who was also a Mauritian national, and shortly thereafter she also arrived in the State and was granted a permission to reside in the State also on stamp 2 conditions. On 17 July 2009, their son, the third named applicant, was born in the State. The first and second named applicants regularly renewed their permissions to be in the State on stamp 2 conditions between 2006/2008 and 2013. On 1 January 2011, a new policy document was adopted regarding non-EEA students. It set out time limits for the pursuit of degree courses and non-degree courses and an overall time limit of seven years presence in the State as a student. 

On 19 December 2013, an application was made to the Minister on behalf of the applicants seeking a variation of the permissions and to change to “stamp 4” status which permitted residence in the State with an entitlement to enter employment and receive social welfare payments and did not require the applicants to be students. The application referred expressly to their alleged rights to respect for private and family rights pursuant to art.8 ECHR and also to rights guaranteed by Arts 40 and 41 of the Constitution. At the time of the application, the applicants had a subsisting permission to be in the State.

On 22 October 2014, two separate decisions issued addressed to the first and second named applicants refusing “an extension of your immigration permission”. The letters requested that the first and second named applicants provide evidence of their departure from the state by a specified date, failing which it was the Minister’s intention to issue notifications under the provision of s.3 of the Immigration Act 1999. The decisions made no reference to the rights of the applicants pursuant to the Constitution and/or European Convention on Human Rights and no reference at all to the position of the minor third applicant.

By order of the High Court (MacEochaidh J.) of 1 December 2014, the applicants were granted leave to apply for an order of certiorari of the respondent’s refusal decisions. The applicants argued that the Minister’s decision to reject their application for change of status/permission to reside in the State on “stamp 4” conditions was unlawful and contrary to s.3 of the European Convention on Human Rights Act 2003, by reason of the failure to have any regard to the personal and/or family and/or private life rights of the first and/or second and/or third named applicants pursuant to Arts 40.3 and/or 41 of the Constitution and/or art.8 of the European Convention on Human Rights. Insofar as the Minister’s policy was that the applicants’ personal rights, including their art.8 rights, could only be considered in the context of a proposal to deport pursuant to s.3 of the Immigration Act 1999, it was argued that this policy was unlawful and in breach of natural and constitutional justice in that such application was considered in the pre-deportation process when the Minister has already formed an intention to consider making a deportation order. Furthermore, it was submitted that such policy or procedure required the applicants to become unlawfully resident in the State in order to apply for permission to reside in the State on the basis of their family and/or private life rights, which would significantly prejudice the applicants in terms of losing their entitlement to work and thus depriving them of the ability to support themselves and their son.

The Minister argued that, in deciding whether or not to grant the application made by the applicants, it was under no obligation, having regard to the circumstances of the case, and in particular the basis upon which the applicants had been permitted to enter and reside in the State as students, to consider any personal, family, or private rights enjoyed by the applicants. In the event of the respondent’s proposing to make deportation orders in respect of the applicants and their making representations on foot thereof in support of an application for leave to remain in the State, the respondent would consider all such representations and any rights the applicants sought to assert pursuant to art.8 ECHR and/or the Constitution.

The High Court (Humphreys J.) in a written judgment of the 22 October 2014 ([2016] IEHC 132) refused the applicants the reliefs sought. The High Court certified that the decision involved the following points of law of exceptional public importance in relation to which it was desirable in the public interest that an appeal be taken:

(a) Whether the respondent is required in relation to an application to extend a permission the case of a person in a position to renew the application from outside the State to consider related private and/or family rights of such a person either under the Constitution or the European Convention on Human Rights.

(b) Whether there is an obligation imposed in law on the respondent to publish a criteria applicable under s. 4(7) of the Immigration Act 2004 to a non-EEA student with a current residence permission at the time of the application who seeks a further permission to reside in the State.

Reasoning: 

The Court of Appeal allowed the appeal and overturned the decision of the High Court. The Court of Appeal held that a proposed decision not to renew an immigration permission could have the consequence that a non-national was then unlawfully present in the State and had the potential to be an interference with that individual’s right to respect for private and family life such that it was capable of engaging art.8 of the European Convention on Human Rights. For this reason, in considering such an application, the Court held that the Minister was obliged to consider any rights of the applicant alleged to be protected by the Constitution or art.8 of the Convention prior to making a decision to refuse to renew the permission. 

The Court of Appeal held that it was only if interference with an applicant’s right to respect for private or family life had consequences of such gravity as potentially to engage the operation of art.8 of the Convention that the proposed action must be justified in accordance with art.8(2). This was a matter for determination by the Minister subject only to judicial review by the courts. The Court of Appeal held that the Minister could not require the applicants to leave and apply for permission from outside of the State. Section 4(7) of the 2004 Act expressly entitled an application to be made by a person to renew a permission to be in the State and empowered the Minister to consider and if appropriate grant such a renewal of permission. In the context of s.4 this clearly envisaged an application being made from a person who was within the State.

The Court of Appeal also held that there was no obligation on the Minister to publish a policy or criteria according to which an application from a timed out non-EEA student pursuant to s.4(7) of the Act of 2004 for change of immigration status to “stamp 4” conditions would be determined. Section 4(7) granted a discretionary power to the respondent which must be exercised on the basis of the individual facts and circumstances advanced by the applicant, in accordance with constitutional principles and pursuant to s.3 of the European Convention on Human Rights Act 2003 in a manner consistent with the State’s obligations under the Convention.

The Court said it was important to emphasise that its previous decision in CI v Minister for Justice, Equality and Law Reform [2015] 2 I.L.R.M. 389 did not determine that even those applicants who had never been given permission to lawfully reside in the State did not enjoy private and family rights which required consideration in the context of a proposal to deport which was to bring to an end their residence in the State.

Decision:

Appeal allowed.

Principles:

The decision in Luximon confirms that the provisions of the Irish Constitution regarding private and family life rights and similar rights under Article 8 of the European Convention of Human Rights must be considered by the Minister when assessing an application for change of immigration status under section 4(7) of the Immigration Act 2004.


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